BILL ANALYSIS
AB 2469
Page 1
Date of Hearing: April 20, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2469 (B. Berryhill) - Amended: April 15, 2010
As Proposed to be Amended
SUBJECT : STATE AIR RESOURCES BOARD (ARB): VIOLATIONS
KEY ISSUE : SHOULD THE AIR RESOURCES BOARD BE MANDATED TO
ESTABLISH A NEW PROCEDURE FOR RESOLVING PENALTIES WHEN COMPANIES
VIOLATE CLEAN-AIR LAWS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
The purpose and effect of this bill is not entirely clear
because the Committee was not provided with background
information by the author within Committee deadlines.
Nevertheless, based on information gleaned from the Natural
Resources Committee's analysis regarding the bill prior to
recent amendments, the author appears to be concerned that the
Air Resources Board makes significant enforcement decisions that
are not subject to review or public processes prior to suit,
which, the author maintains, requires significant resources and
time that are not reasonably available to the majority of
regulated parties. The author further contends that lawsuits
frequently do not solve problems, and that an alternative
administrative process would provide a fair, efficient, and
predictable means to reduce the money and time spent defending
lawsuits and in informal negotiations, and increase the
transparency of the appeal process. As introduced, the bill was
opposed by nonprofit groups dedicated to the protection of
health and the environment. It is believed that, in the bill's
amended form, those concerns have been substantially reduced, if
not eliminated, although opponents may continue to argue that
the bill is unnecessary and duplicative
SUMMARY : Mandates a new government program designed to assist
violators of certain air quality laws. Specifically, this bill
provides that the Air Resources Board (ARB) shall adopt a
discretionary alternative process to resolve appropriate
disputes regarding proposed penalties for violation of any
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requirement of specified clean-air laws, any requirement of the
laws administered by the ARB, or of any rule, regulation, or
order of the ARB, if the board finds (1) that the violator does
not have a history of prior violation; and (2) the public
interest is as fully protected as it would be if any other
process were used. The violator's prior history, as well as the
board's determination that the dispute is appropriate for
discretionary alternative resolution and that the public
interest is as fully protected, shall be matters of public
record.
EXISTING LAW :
1)Establishes ARB within the California Environmental Protection
Agency. ARB's primary duties are controlling motor vehicle
emissions, coordinating activities of air districts for the
purposes of the federal Clean Air Act, and implementing the
California Global Warming Solutions Act (AB 32). (Health and
Safety Code section 39500 et seq.)
2)Requires ARB to administer an Ombudsman's Office that serves
as a general resource to small businesses, large businesses,
trade associations, and individual community members regarding
air quality regulations.
3)Provides for the establishment of county air pollution control
districts, and requires that a county district be established
in every county, unless the entire county is included within
the Antelope Valley Air Quality Management District, the Bay
Area Air Quality Management District, the Mojave Desert Air
Quality Management District, the South Coast Air Quality
Management District (SCAQMD), the San Joaquin Valley Air
Quality Management District, if that district is created, a
regional district, or a unified district.
4)Subject to the powers of the ARB, requires air districts to
adopt and enforce rules and regulations to achieve and
maintain the state and federal ambient air quality standards
in all areas affected by non-vehicular emission sources under
their jurisdiction.
5)Authorizes air districts to establish a permit system that
requires, except as specified, that before any person builds,
erects, alters, replaces, operates, or uses any article,
machine, equipment, or other contrivance that may cause the
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issuance of air contaminants, the person obtain a permit from
the air pollution control officer of the district.
6)Requires each air district to appoint a five-member hearing
board, including a lawyer, an engineer, and a medical
professional, for the purpose of hearing applications for
variances from district rules. Districts are authorized to
collect fees from applicants to cover the costs of the hearing
board process.
COMMENTS : The Committee received no background information from
the author in response to the Committee's customary request that
information about the need for and purpose of the bill be
submitted on the Committee's standard background information
worksheet. A copy of that worksheet form was transmitted to the
author's office on March 18, 2010. Under the Committee's rules,
prominently noted on the first page of the worksheet:
This form must be fully completed and hand-delivered to the
committee no later than seven (7) calendar days after it is
initially delivered to the author's office. If the bill
has been set for hearing, it shall constitute an author's
reset if a satisfactory worksheet or other requested
information has not been timely received by the committee.
Committee staff noted the absence of the worksheet and again
requested of the author's office that it be supplied in the week
prior to the hearing, but did not receive it. Applying the
Committee's rules, the absence of the worksheet constitutes a
hearing reset. Because the bill is fiscal, a reset to next
week's Committee hearing would cause the bill to miss the policy
committees' fiscal deadline. As a courtesy to the author, this
committee report has been prepared to allow the bill to be
considered if the Committee wishes to do so - though it would be
in its prerogative not to do so since despite repeated requests
for the requisite background information the author's office
failed to meet this requirement. Owing to the absence of
information from the author, the analysis is taken from
information supplied by the Natural Resources Committee and the
Assembly Republican Policy office regarding the bill
as-introduced, prior to recent amendments.
The Author's Apparent Purpose Is To Relieve Businesses of
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Penalties For Violation of Clean-Air Laws. The Natural
Resources Committee report that, according to the author:
Currently, the ARB executive officer and staff make
significant enforcement decisions that are not subject to
review. In addition, in cases where the ARB would like to
extend a compliance deadline, there is no process to
formally and publicly adopt that extension. The only
appeal process available to a regulated party is to sue the
state. This requires significant resources and time that
are not reasonably available to the majority of regulated
parties. In addition, lawsuits frequently do not solve
problems?An administrative dispute resolution process will
provide a fair, efficient, and predictable process
available to all regulated parties and will reduce the
money and time spent defending lawsuits and in informal
negotiations. It will also increase the transparency of
the appeal process as all interested stakeholders can weigh
in during the hearing. The proposed dispute resolution
process is modeled after existing air pollution hearing
processes developed for disputes that could occur under
local air pollution district rules.
Existing ARB Mechanisms For Resolution Of Disputes. The Natural
Resources Committee states that before a regulation is adopted
ARB must follow the usual rulemaking process, which offers all
parties an equal opportunity to comment on proposed regulations,
participate in hearings and workshops, and lobby the board
itself. The ARB process is then followed by review by the
Office of Administrative Law before a regulation is implemented.
Parties aggrieved by adopted regulations may seek
administrative relief from the executive officer, the board, or
via judicial review. In addition, ARB is federally mandated to
house an Ombudsman Office to assist small and large businesses,
trade associations, and individual community members regarding
any aspect of the ARB regulatory process. The Ombudsman's
mission includes education on California's air quality
management system, guidance on air quality rules and
regulations, assisting small businesses in compliance with those
regulations, and providing help toward solutions when there is
an air quality compliance problem. The Ombudsman reports
directly to the ARB Chair.
As Introduced, Opponents Believed The Bill Addressed Different
Circumstances And Proposed Different Standards Than Air
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Districts' Variance Process. The Natural Resources Committee
states that the scope of the bill as introduced was much broader
than any existing air district variance process because it
permitted any person who must comply with any ARB regulation,
including stationary and mobile sources, consumer products
makers, even air districts and other public agencies, to appeal
for relief. The number of entities eligible for relief would
have been many times greater than any air district. Unlimited
appeals could swamp the dispute resolution process and delay
compliance with air quality and climate change goals.
The Natural Resources Committee analysis noted, in addition,
that the bill as introduced proposed that petitions for relief
be decided by a single ALJ, rather than the five-member hearing
boards in the air district process, and requires no particular
qualifications for the ALJ. Finally, unlike the air district
process which requires applicant fees to cover the cost of
review, the bill would have provided no specific fee authority
to fund the hearing process.
Proposed Clarifying Amendments. In order to appropriately focus
and clarify the measure and address opposition concerns, the
Committee should adopt the following amendments:
39950. The state board shall adopt a discretionary alternative
process to resolve appropriate disputes regarding proposed
penalties for violation of any person's ability to comply with
any requirement of Division 25.5 (commencing with Section
38500), any requirement of this division administered by the
state board, or of any rule, regulation, or order of the state
board if the board finds (1) that the violator does not have a
history of prior violation and (2) the public interest is as
fully protected as it would be if any other process were used.
The violator's prior history, as well as the board's
determination that the dispute is appropriate for discretionary
alternative resolution and that the public interest is as fully
protected, shall be matters of public record.
REGISTERED SUPPORT / OPPOSITION :
Support (As Introduced)
California Council for Environmental and Economic Balance
(sponsor)
California Chamber of Commerce
AB 2469
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Western States Petroleum Association
Opposition (As Introduced)
American Lung Association
Bay Area Air Quality Management District
Breathe California
Environment California
Environmental Defense Fund
Sierra Club California
Union of Concerned Scientists
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334